Sunday, November 30, 2008

The New York Daily News dropped a doosey today, reporting that Clinton declined an offer to chair the Senate Appropriations Committee in order to pursue the position of Secretary of State (which she will reportedly receive tomorrow). The same article reports that Ted Kennedy declined a request by some Democrats that he create a Senate subcommittee to deal with health care legislation; under the "deal," Clinton could have chaired the subcommittee. The New York Daily News article says that Kennedy rejected this arrangement due to lingering anger over Clinton's presidential campaign.

When I first read the article, I viewed Kennedy's "behavior" as a throwback to the way he reacted after losing the Democratic primaries to Carter in 1980. After Carter won, instead of helping to unify the Democrats as Clinton did, Kennedy remained as bitter as a gun-toting, Bible-clinging, homo-/xenophobic disempowered American. But then sanity overtook me, and I conducted some research on the issue and discovered that the New York Daily News article likely presents a distorted view concerning an alleged Kennedy grudge. Well, the New York Daily News is a tabloid. Why let facts or nuance get in the way of reporting?

Apparently, even though Kennedy refused to create a subcommittee on health care for Clinton to lead, he offered her a position on his new Senate health care task force, which has three working groups. Clinton would have headed the section studying insurance coverage. The Los Angeles Times, Newsday, an official press release from Senator Tom Harkin (who also has an offer to sit on the task force), and many other sources (found with a simple Google News search) confirm that Kennedy picked Clinton.

Also, his refusal to form the subcommittee to deal with the health care legislation could result, as the Associated Press reports, from his own desire to monopolize the issue (at least in the Senate), rather than from a political grudge with Clinton. As Chair of the Senate Committee on Healthcare, Kennedy probably intends to conduct Senate hearings on health-care issues himself. Having Clinton leading a subcommittee on healthcare could diminish his own voice on the subject.

Furthermore, because Obama has appointed Daschle to head the Department of Health and Human Services and to serve as a Healthcare Czar, any role in Congress on this issue would probably have been too limiting for Clinton. Her expertise on healthcare dwarfs Daschle's, but Daschle and Kennedy endorsed Obama at critical moments during the primaries. As payment, they get to play leading roles on healthcare reform. Clinton did not land too lightly, however; as "compensation" for her general-election support of Obama, Clinton will become Secretary of State.

When Bill Richardson snubbed Hillary Clinton and endorsed Barack Obama, some Clinton supporters said he betrayed her. James Carville, in his classic Cajun style, called Richardson a "Judas."

Now, Ruben Navarrette, a columnist for the San Diego Union-Tribune, complains that Obama has betrayed Richardson by picking Clinton to serve as Secretary of State. For those of you who do not follow Navarrette's writings, he passionately opposed Clinton during the primaries. Afterwards, however, he seemed to develop a softness for McCain. I am not sure what to make of this, but Navarrette's recent anger towards Obama and his disappointment that Clinton will probably head the Department of State do not surprise me.

With respect to Clinton's likely nomination, Navarette argues that:

Now I wonder what message it sends that President-elect Obama has apparentlypassed over Richardson and seems ready to offer the post at state to theirformer rival, Hillary Clinton. While known the world over from her days as firstlady, Clinton doesn't have anywhere near Richardson's level of experience inforeign affairs. Besides, she treated Obama reprehensibly during the primary.Does anyone really think that if Hillary had been elected president that shewould be vetting Barack Obama for secretary of state?

After the snub, Richardson turned the other cheek and got slapped again. He is reportedly about to be offered, as a parting gift, a job — secretary of commerce — that someone else turned down. That someone else was Penny Pritzker, the president-elect's chief fundraiser who reportedly was Obama's choice for the post. A billionaire heir to the Hyatt hotel fortune, Pritzker withdrew her name fromconsideration.

Navarrette concludes his essay with some harsh words for Obama:

This isn't about Richardson, who might be very happy heading for ribbon cuttingsin Toledo while Clinton heads for blue-ribbon summits in Tel Aviv. . . .

America's largest minority took a chance on Obama despite the fact thatthe president-elect had no track record in reaching out to them and didn't breaka sweat trying to win their votes. They deserve better.

I am not sure whether Obama ever considered Richardson for the position of Secretary of State. If Richardson ever had a serious chance at receiving the post, then Secretary of Commerce would certainly represent a sharp tumble in terms of prestige.

But Richardson must certainly understand that nothing is certain in politics. Clinton, for example, believed Richardson would endorse her over Obama because he worked in her husband's administration and gained national prominence as a result. But that experience did not secure Richardson's support for Clinton. Instead, Richardson made a decision that seemed most politically favorable to him. All politicians do this. By the time Richardson endorsed Obama it appeared that he had an insurmountable lead in pledged delegates. By supporting Obama's candidacy, Richardson bet on Obama eventually winning the Democratic nomination and possibly the general election. By siding with the likely nominee, Richardson sought to maximize his own opportunities for political prominence and access to the White House. These types of calculations animate all political endorsements, although the carefully tailored statements that accompany most endorsements deceptively imply altruistic motives.

Now, Obama has made a similarly self-interested political decision. Ironically, Richardson loses, while Clinton gains. Because of the strong level of support for Clinton among Democrats and the divisiveness of the primaries, Obama probably cut a deal that reserved a high-level appointment for Clinton in his administration. Because Daschle, whose ideas on healthcare are more in line with Obama than Clinton, won the spot to lead the Department of Health and Human Services, the only remaining natural fit for Clinton was Secretary of State. Apparently, her campaigning for Obama paid off with this very important cabinet position.

Because politicians, including Richardson himself, constantly make decisions that advance their own political opportunities, Navarrette's anger is misplaced. The very same type of self-interested political calculation that led Richardson to endorse Obama instead of Clinton, has now caused Obama to prefer Clinton over Richardson. Politics is not for the faint of heart.

According to several media reports, Barack Obama will name his entire foreign policy team Monday, and Hillary Clinton will officially receive an offer to serve as Secretary of State. I have expressed my cynicism over this rumored nomination a few times (see, e.g., If Clinton Becomes Sec. of State for Obama, My Cynicism Will Max Out! ). Nonetheless, political idealists apparently still exist. According to CBS News, for example, Obama's decision to pick Clinton does not stem from cold political calculation but instead represents "an extraordinary gesture of goodwill after a year in which Clinton and Obama competed for the Democratic nomination in a long, bitter primary battle" (boldface added). And perhaps McCain really did pick Sarah Palin because he is an old-school feminist.

Clinton's nomination likely results from a carefully negotiated deal between the Obama and Clinton camps and DNC leadership. The agreement kept Clinton off the ticket altogether, in return for a very high-level position within the Senate or in Obama's administration. In exchange for the deal, Clinton needed to keep the PUMAs in the party by campaigning for Obama's. The gritty "No Way, No How, No McCain" speech set things into motion, followed by the cute emails to supporters urging them to canvass for Obama to tell prospective voters that "Hillary sent me."

In exchange for her work, Clinton gets the highest cabinet position, and she forces Obama to contradict his campaign message and declare that she has credible experience and good judgment in foreign affairs. Furthermore, Clinton's nomination would, by implication, help neutralize racism charges that surrounded both Clintons for about a year. As a race relations scholar, I tend to see race more than the average person, but I doubted many of the accusations of racism during the Democratic primaries. Because Obama has campaigned with both Clintons and has picked Hillary to hold his highest cabinet position, perhaps he views these accusations with a similar level of skepticism.

Query: What do readers think? Is my analysis too cynical? Should I celebrate Clinton's nomination tomorrow as a rare "feel-good" political moment? Am I "stuck in the past"?

The University of Florida extended its winning streak to 8 games and in the process, continued its dominance over opponents. Next week the Gators face undefeated and presently ranked number one Alabama in the SEC Championship game. The winner will play for the BCS Championship.

Saturday, November 29, 2008

The news may have come late in the day, but the Associated Press has finally chimed in on the irony of Obama nominating Clinton as Secretary of State after he ridiculed her foreign policy credentials during the Democratic primaries. Here is a snippet:

It wasn't too long ago that Barack Obama and his advisers were trippingover one another to tear down Hillary Rodham Clinton's foreign policycredentials. She was dismissed as a commander in chief wanna-be who did littlemore than sip tea and make small talk with foreign leaders during her days asfirst lady.

"What exactly is this foreign policy experience?" Obama said mockinglyof the New York senator. "Was she negotiating treaties? Was she handling crises?The answer is no."

The article also reports that some of Clinton's harshest critics will serve with her in the Obama administration:

Greg Craig, selected to serve as White House counsel in the Obamaadministration, delivered a withering attack during the primaries on Clinton'sclaims that she could rightfully share in the credit for some of the foreignpolicy successes of her husband's presidency.

"She did not sit in on any National Security Council meetings when shewas first lady," Craig insisted in one conference call. He went on to knock downClinton's claims to influence in the Northern Ireland peace process, openingborders for refugees during the war in Kosovo, and making a dangerous visit toBosnia.

"There is no reason to believe . . . that she was a key player inforeign policy at any time during the Clinton administration," Craig wrote in acampaign memo.

Susan Rice, an Obama adviser who could land a spot in the newadministration, mocked the idea that Clinton could lay claim to foreign policycredentials by marriage.

"There is no crisis to be dealt with or managed when you are first lady,"Rice sniffed last March. "You don't get that kind of experience by being marriedto a commander in chief."

My thoughts: A political commentator cited in the article rightfully observes that political campaigns often involve hyperbole. But this type of politicking conflicts with Obama's campaign narrative. He was depicted as a righteous politician, while Clinton represented "dirty" politics. Indeed when Clinton resorted to hyperbole (e.g., the 3am commercial), critics accused her of waging a "kitchen sink" campaign and destroying the potential for a Democratic victory.

It becomes clearer everyday how skillfully Obama out-maneuvered his opponents. Often, the best politicians wage political battle without appearing as if they are. It also becomes abundantly clear how little critique the media offered in response to the anti-Clinton rhetoric during the primaries and how very few of them seem willing to examine the contradictions between that rhetoric and Obama's decision to nominate Clinton as Secretary of State. It is a lot easier for a candidate to play politics if the media fail to scrutinize his or her claims. Accordingly, AP writer Nancy Benac deserves kudos for writing this article. Although I have analyzed these issues many times on Dissenting Justice, I am just a lowly blogger (for the literalists out there, this was a crude attempt at self-deprecating humor).

Earlier today, I posted an entry analyzing some pretty salacious advertising in judicial election contests. The advertisements threaten the independence of the judiciary because they demonize judges who protect the civil liberties of unpopular individuals. The commercials also use disgruntled parties who make specious claims about judicial candidates in order to embarrass them and harm their re-election prospects.

Another issue that threatens judicial independence concerns campaign financing. Donations finance judicial election contests just like all other political races. A host of ethical concerns arise in this setting as well, and they probably carry even greater force.

The Supreme Court will take up the issue of money and judicial elections later this term when it decides Caperton v. Massey. In Caperton, Justice Brent Benjamin of the West Virginia Supreme Court of Appeals refused to recuse himself in a case in which the defendant contested a 50 million dollar judgment against it.The defendant's CEO personally donated 3 million dollars to Benjamin's campaign. This represents 60% of the total funds donated to Benjamin.

Shockingly (do not let the sarcasm escape you), Benjamin sided with the defendant and the court overturned the verdict by a vote of 3-2. Because of the closeness of the ruling, Benjamin's vote truly mattered. And it only cost 3 million dollars, which, compared with the magnitude of the jury verdict, sounds like a great investment. But the investment is "great" only when ethical and rights issues fall out of the equation.

This case represents an egregious example of "buying" influence, and if the Supreme Court does not reverse it, the implications for poor plaintiffs seeking civil justice are astounding. The American Bar Association and other groups interested in civil justice have urged the Court to reverse the ruling. The ABA does not believe that contributions to judicial campaigns are inherently unethical, but it argues that at some point, the magnitude of a donation can cross the line and can amount to bought justice. The Court will likely decide this case some time next year.

For legal commentary (and other issues) see:Brennan Center web page on Caperton v Massey. Disclaimer: the Brennan Center for Justice at New York University prepared this website. The Brennan Center has filed a brief urging the Court to reverse the decision.

Despite concerns over impartiality and fairness, many states continue to elect judges to the bench, including to their highest courts. Although politics and public opinion influence judges who are appointed, rather than elected (a lot of empirical research supports this claim), selecting judges by elections probably does even more damage to judicial independence.

Campaigns for judgeships can become as vicious as those for political office. FactCheck.Org has released a summary of court races in several states this year that have involved some very "interesting" campaigns advertisements. These commercials highlight the ethical concerns related to judicial elections. Here are some highlights from the FactCheck memorandum.

* In Mississippi, an out-of-state group funded a commercial which claimed that Supreme Court Justice Oliver Diaz, Jr., who was up for re-election, "voted for" a child murderer and rapist. This advertisement is quite inflammatory. First it describes deciding a case against the state as "voting for" the defendant. Second, the commercial seeks to demonize the judge for vigorously supporting due process rights (whether or not he was "wrong" in his interpretation of precedent) by exploiting negative public opinion of sex offenders and murderers.

In the case at issue, Diaz dissented after a majority of the court refused to allow the defendant a hearing to present DNA evidence that could prove his innocence. The number of DNA acquittals for convicted individuals continues to rise. Nevertheless, the commercial disparages the judge for seeking to protect the due process rights of the defendant in this situation. The Bill of Rights, however, does not contain exceptions for the class of crimes commited.

The commercial also accuses Diaz of supporting a second child killer. Diaz dissented in a case in which the majority refused to issue a stay of execution for a man convicted of murdering a child. Diaz argued that Mississippi should delay execution until after the U.S. Supreme Court decided a then-pending case on the constitutionality of executions by lethal injunction (which Mississippi uses). Although lower courts frequently delay cases that implicate matters under review in appeals courts -- especially when, as here, a "wrong" decision would be fatal and irreversible, the commercial turned this standard process into something ominous.

A judicial ethics committee denounced the advertisement in pretty strong language. Here's an excerpt: "A judge is sworn to uphold the law and adjudicate cases in accordance with law, and not ignore the law based upon the popularity or infamy of those who appear before the court or the heinousness of the crime of which they are accused." These are forceful words, but the situation raises serious questions about the appropriateness of judicial elections.

* Moving north to the blue-state of Michigan, the Democratic Party ran a commercial accusing Chief Justice Cliff Taylor, a Republican judge and candidate for re-election, of sleeping during an oral argument. In the case at issue, the plaintiff sued the City of Detroit and public housing officials claiming that they were liable for a fire in her apartment that killed six children (sad that the commercials use kids as political footballs). In a 4-3 ruling the Michigan Supreme Court dismissed the lawsuit on the grounds that the defendants were immune from liability. Taylor sided with the majority.

An unnamed woman in the commercial says she witnessed Taylor sleeping during the proceeding. News accounts report that plaintiff is the speaker. Her accusation against the judge, however, never emerged until the eve of the election, even though the alleged "siesta" took place one year prior to the campaign advertisement. Also, other witnesses dispute her account. Taylor lost his re-election bid, and many observers believe the commercial probably played a decisive role.

Editors note on the sleeping-judge advertisement: I really hate saying this (because people could distort my words), but oral arguments on appeals of purely legal issues are not ordinarily helpful to judges. Once the issue gets to the appeals court, it has been subject to legal briefing (often more than once), and the lower court might have issued a written ruling on the issue which the appeals court could use as precedent. Consequently, many judges report that oral arguments rarely affect the way they decide legal issues. Some courts in fact only host oral arguments at their own convenience, not at the request of the parties.

I am not condoning sleeping judges, but if the proceeding does not require the court to take evidence or ascertain the credibility of testimony, then it is less critical to the outcome of the case. All of this is to say that not only was the factual assertion in the commercial questionable in terms of its credibility, but the issue of dozing off at an oral argument does not necessarily make the judge unfit. It is more embarrassing than anything else.

Overall comment: Clearly these disputes centered around ideology. Conservatives hated the "liberal" rulings of the Mississippi judge, while Liberals despised the jurisprudence of the Michigan Republican judge. And while politicians also debate ideology when considering whether to approve Judaical nominees, this type of discussion in the context of a state-wide election risks unfairly swaying public opinion. A specialized field of legal ethics examines and monitors judicial elections. The type of sleazy material in these settings make the 3am commercial look like a tap on the wrist.

Thursday, November 27, 2008

I am off to smoke a standing rib roast and turkey! But before I go, I would like to say that I am very thankful for your visits, emails, comments, and encouragement. Last night, Dissenting Justice crossed the 10,000-visitors threshold. This blog started with a simple desire to get people thinking critically and being honest. Thanks for making that possible. I now know that many other people desire truth, rather than accepting what the media, political parties, and politicians feed us.

As you enjoy your holiday, remember that the country is in a recession. It is imperative that we do things to help those in need because they suffer even more during times of economic strife. Give to your favorite charity. Even a little goes a long way. If you do not have a "favorite charity," give to an established group like the Red Cross or to your local food bank. Hillary, Barack, and John would want you to do this. Safe feasting!

Darren Hutchinson

PS: Yes, this is a feel-good holiday post. You probably thought I was not able to do something like this.

Although Arianna Huffington's enormous blog is often "hit or miss," sometimes it manages to strike big with a contributor. A recent entry by Billy Kimball knocks it out of the ball park. Kimball lampoons Obama's "Clinton Cabinet" with his very provocative essay, "Obama Team Mulls Role for Miss Lewinsky in New Administration."Here's a snippet:

Former South Dakota Senator Tom Daschle, who is expected to be nominated asSecretary of Health and Human Services, responded to a reporter who asked aboutthe Lewinsky rumors by pretending to receive a cell phone call. When thereporter took the phone from him and closed it while making a "we both know whatyou're doing" facial expression, Daschle said that appointing Lewinsky would be"like rubbing salt in the wounds of Senator Clinton at a time when we'resupposed to be in a healing process." He added that Miss Lewinsky's presence inthe White House would be "a huge distraction."

But New Mexico Governor Bill Richardson, who broke with the Clintonsover his endorsement of Mr. Obama, said that Lewinsky was "a fresh face" with "alot to offer." Richardson lost the post of Secretary of State to Senator Clintonand is now Mr. Obama's choice for the far less prestigious job of Secretary ofCommerce. "The Obama administration should be focused on recruiting the bestpeople to help us address the challenges of the future and not get bogged downin past history," he said. . . .

Monica Lewinsky was not available for comment. Through her attorney,William Ginsburg, she released a statement, which read, in part, "I am honoredand humbled by the opportunity to serve my country again at this crucialjuncture in our history."

Karl E. Meyer and Shareen Blair Brysac have an Op-Ed in today's Washington Post in which they advocate replacing Hillary Clinton with husband Bill in the Senate, should she take a highly speculated offer to serve as Secretary of State for Obama. I am not sure what to make of this. Are the authors seeking attention through a "stunt"? Does the Washington Post desperately need to shift papers and generate web traffic? Or, is this a brilliant idea, assuming that Bill could suppress his ego and accept the position if Governor Patterson decided (or was forced) to appoint him? I think I will not touch this beyond simply raising questions. Doing more requires too much thought for a holiday!

I suspect the American people would be troubled if I selected a treasurysecretary or a chairman of an economic council at one of the most criticaleconomic times in our history who had no experience in government whatsoever. .. What we're going to do is combine experience with fresh thinking. . . .We needpeople who will be able to hit the ground running. . . .

This is a pretty good comeback, which was already previewed by some media even before today's press conference (see this article). That would be an unassailable response if it did not use the losing argument that Clinton used in the primaries -- that she was "ready to lead on day one." Also, John McCain's experience was used against him; rather than benefiting him, his long exposure to government made him "out of touch," "more of the same," and a quintessential Washington insider. He could not "change" anything because he had already been around too long (and things still needed to be fixed). The commercial with vintage footage of McCain arriving in Washington as a young man captures the point I am trying to make. This argument appealed to younger voters who often described McCain as an "old man." They were not being affectionate.

I love Obama's response though. It is a great political narrative. And most Americans have such a short memory that they probably do not recall most of the campaigning at this point. Also, I have always believed that experience matters; and judging from his cabinet and recent statement, Obama does too.

But one problem I have with this defense is that it means that politicians are either complete opportunists who lack a commitment to values of their own (e.g., conservative Gates working for progressive Obama) or that Obama is far more moderate than his campaign and many of his supporters have described him. Which explanation works for you?

A year ago, when Barack Obama said it was time to turn the page, his campaign declaration seemed to promise a fresh start for Washington. I, for one, failed to foresee Obama would turn the page backward. The president-elect's lineup for key governing positions has opted for continuity, not change. Virtually all of his leading appointments are restoring the Clinton presidency, only without Mr. Bill. In some important ways, Obama's selections seem designed to sustain the failing policies of George W. Bush [Snide Editorial Comment: Melodrama!].

This is not the last word and things are changing rapidly. But Obama's choices have begun to define him. His victory, it appears, was a triumph for the cautious center-right politics that has described the Democratic party for several decades. Those of us who expected more were duped, not so much by Obama but by our own wishful thinking [Snide Editorial Comment: Amen].

I'm going out on a limb here, but I think I am probably correct. If Hillary Clinton had won the election and made the same cabinet choices as Obama, this would cause the Left to experience a collective head explosion. Although Obama's choices have raised the eyebrows of progressives, they have not caused a complete meltdown. And many mainstream media outlets have in fact praised Obama for placing "pragmatism" over "ideology" -- as if the two concepts are mutually exclusive.

During the Democratic primaries, however, progressives and the media engaged in very passionate, sometimes distorted, efforts to distinguish the two leading candidates on grounds of ideology. Many of them reserved the harshest criticism for Clinton's relationship with personnel from her husband's administration. They also viewed Clinton as most unacceptable on matters related to foreign policy. But now, Obama has not only picked many of the same people who received leftist criticism to serve in his administration, but he has chosen Clinton to formulate and implement foreign policy. If "hawkish" President Clinton had decided to keep Republican Gates at the Department of Defense, the progressive outcry would be deafening. But now, Gates is praised as a "Scowcroft Republican." That sounds like the Bush Doctrine: contrived and amorphous.

Perhaps the biggest thing Obama has done so far is make the Left reconsider its (or "our") vitriolic opposition to some of the Clintons' centrist/right-leaning political compromises. Or maybe Obama simply benefits from not being a Clinton. But progressives would never do something as irrational and discriminatory as describing the political decisions of one person as dangerous to the country while characterizing these same choices as smart, pragmatic or at least acceptable when another person makes them.

Tuesday, November 25, 2008

A Florida court has invalidated a state law that prohibits adoption by gay or lesbian individuals. The court's ruling followed a full trial in which the court heard testimony on the issue of whether a "rational basis" could justify the law.

Often, people have a knee-jerk reaction to the subject of gay parenting. To avoid falling victim to this pattern, I strongly encourage you to read the court's opinion. Some of it is technical, but it has a very "readable" quality. The first dozen pages describe the "family" in the case and present the children as very stable and healthy. If you have children, you will probably relate to this part of the opinion -- unless your household looks more like "Married With Children."

Here are some highlights:

* As I mentioned above, the first part of the opinion describes the daily routine of the children whose father brought the suit. The gay male, who is partnered, started as a foster parent for the two siblings. He and his partner have basically raised the children for four years. When the kids first arrived one of them did not even speak due to severe depression, and both of them were poorly clothed and ill. They were highly neglected children. Under the care of their new parents, they are now healthy and adjusting. But under Florida law, apparently they were better off in temporary placements than with permanent gay adoptive parents.

* Although the disputed law bans adoptions by "homosexuals," Florida does not ban adoptions by unmarried individuals. In fact, over 1/3 of adoptions in Florida involve single parents. Because the State permits adoptions by single people, it basically negated the "kids need a man and woman as parents" argument.

* Under Florida law even FELONS can adopt! Yes, felons have more rights under Florida adoption law than law-abiding homosexuals."

* Florida permits gays and lesbians to serve as foster parents - even for extended periods of time. The state considers gays and lesbians fit to serve as temporary, but not permanent, parents. Are you beginning to see why the judge ruled that the law lacks a rational basis?

* The State of Florida presented evidence which it used to argue that gay and lesbian people have higher rates of alcohol abuse, depression and lower life expectancies. The court very powerfully dismantled that argument. It noted, for example, that if the State prohibited all demographic groups with higher rates of alcohol consumption, smoking and depression from adopting, then only Asian American males in the state could adopt.

* The court held that the law infringed the rights of prospective gay or lesbian parents and the rights of children. Gay and lesbian parents have a right to "equal protection" of the laws, and children have a right to "permanency" (i.e., getting out of foster care and into a permanent home placement). Most of these cases turn on the rights of parents. I am happy to see children's interests form part of the ruling.

* The fact that the court made its ruling after a full trial means that the appeals courts should exercise deference when reviewing the factual conclusions. A very standard legal doctrine requires appellate courts to defer to trial courts on fact issues because these courts actually witnessed the testimony and thus have greater competence to make factual conclusions. The appeals courts could still overrule the court's legal analysis which held that the law violated the rights of children and parents. But the appeals courts will overreach if they find that the evidence supports the argument that heterosexuals make better parents.

* Because the Florida court ruled on state law grounds, the U.S. Supreme Court does not have a basis for reviewing the decision. The Supreme Court would undoubtedly reverse if it were reviewing a federal law claim. There is a much greater likelihood, however, that the Florida Supreme Court will uphold the ruling (I am going out on a limb here, but that court has been fairly progressive in recent years).

Concluding thoughts: I try to conduct this blog in a nonpartisan "keeping it real" fashion. Nevertheless, I am very pleased by this ruling! It humanizes kids and their families. That 's a nice touch in a sometimes very callous world -- don't you think?

Citigroup has received a massive federal bailout -- the largest to date, in fact. Today's Washington Post examines how a powerful trio of men -- Paulson, Rubin and Geithner -- worked to secure the deal. Turns out that Robert Rubin -- former Secretary of Treasury under Clinton and a Director of Citigroup -- is an old colleague of Paulson back from their days togetherat Goldman Sachs. Geithner, Obama's pick as Secretary of Treasury, worked for Rubin in the Clinton administration. Rubin made several calls to Paulson pressuring -- I mean persuading -- him to make a really big move with respect to Citigroup. Although it does not appear that Paulson will have a role in the Obama administration, Geithner will, and Rubin has acted in an advisory role for the president-elect on economic issues. Furthermore, Summers, Obama's Chief Economic Advisor, is a protege of Rubin. Could turning to these guys to fix the economy amount to "disease as cure"?

The American political landscape is surreal at the moment, which makes me open to a lot of unusual things. But my flexibility has some limits. Today, David Frum, a former speechwriter for President Bush, offered his analysis regarding Obama's decision to select Hillary Clinton as Secretary of State. Frum has tested my limits.

Obama Engaging in "Tough Politics" and Now in "Control" of ClintonDuring an interview with CNN, Frum provided this interesting perspective on Obama's decision to pick Clinton:

[She] has just moved from having an independent power base in the Senate to being in effect an employee of Barack Obama. And not just any employee, but one who has had to open her files to Barack Obama.

Just imagine the scene of the Obama people going through the Clinton files and saying, "Wow, this could be embarrassing if anybody ever found out about it. Don't worry, it's safe with us."

He has just cemented his enormous power over her, and the sentimental idea out there that he's reaching for a rival and padding the dust off her and bringing her into a Cabinet to be his rival -- no, he's putting her into his Cabinet in order to control her. It's a pretty impressive display of tough politics.

Response: Certainly Clinton, like any other cabinet member, will serves at the will of the President. But anyone with a knowledge of politics knows that cabinet members typically have a lot of say in formulating policy. The Bush administration, however, operated like a dictatorship; perhaps this clouds Frum's analysis. Clinton will clearly implement Obama's policy perspectives, but it is becoming abundantly clear that Obama and Clinton probably do not differ too much in terms of policy (certainly not to the degree advanced by Obama's supporters during the primaries). Besides, if Obama simply wanted to "control" Clinton, he could have picked her as his running mate or appointed her to a less powerful cabinet position.

Also, Clinton is not just any other staffer. She won 18 million votes in the Democratic primaries, and has a large following. That, in fact, explains why people (including Frum) continue to debate her. The pro-Hilary crowd will not vanish simply because she now occupies a high-level position in Obama's cabinet. Having Clinton in the cabinet will keep her from publicly criticizing Obama, but this does not mute her fanbase. Besides, if I am correct, and the two share a similar vision on foreign policy, then they will probably see eye-to-eye on most issues anyway.

Finally, I am not sure whether too many damaging documents concerning Clinton still exist. But even if they do, once she becomes part of Obama's administration, the two politicians' destinies become more united. Her embarrassments become his, and vice versa. Neither has an interest in slamming the other once they begin working together.

Clinton Was "Trapped" Into Accepting the Job By Press LeaksWhen asked why Clinton would take a job that requires her to cede her independence, Frum says: "Well, I think part of it, she was trapped. The series of leaks that happened over the past week; they leaked the news of the offer. Barack Obama looks of course very magnanimous, making such an offer. . . Could she afford to say no and look like she was keeping some kind of grudge? And that might put her on the outs for a lot of Democrats for whom Barack Obama is the leader" (italics added).

Response:Leaks happen for a reason. One explanation: people hold on to juicy news items about as well as newborn babies control their bladders. DC is a leak machine, and Obama's decision to nominate his former rival is about as sensational as it gets. Beyond this reality, I imagine that both sides were playing the media in order to get leverage. Obama probably wanted Clinton to make a quick decision, but he benefited from the leak because it allows him to demonstrate that he has no "hard feelings" towards Clinton.

But once the press got hold of the story, Clinton benefited from stretching out the decision. The longer it bounced around, the more it looked like she controlled his transition process. A media circus could have occurred. Behind the scenes, the two were negotiating a lot of things, including Clinton's authority over hiring her own staff and the release of Bill Clinton's financial dealings. Apparently both sides won. Clinton has secured a "purge" of Obama's aides who said the most vicious things about her during the campaign, and Obama gets husband Bill to turn over documents. Joy.

Frum's assertion that Clinton needed to accept the position in order to demonstrate that she did not hold a grudge against Obama is disconnected from political reality. There are many Democrats who do not like Clinton and believe that she is the antithesis to Obama. If she turned down the job, this crowd would have cheered. Right now, the crowd is crying over Obama picking Clinton and many others from the Clinton administration.

Biden Might Eclipse Clinton on Foreign PolicyFrum also argues that Biden might become as strong Vice President as Dick Cheney and eclipse Clinton. Frum wonders whether Clinton will simply "take orders from the vice president, Joe Biden, who also has a lot of strong policy ideas, and who may end up having a role not unlike that of Dick Cheney. . . And maybe not as powerful quite as Dick Cheney, but he's got a big institutional base, a lot of strong foreign policy ideas. There will be some rivalry there."

Response: This is probably Frum's strongest argument, but I imagine Obama and Clinton have worked out the details of "power" during the long delay. And if reports which say that Clinton has secured a purge of her enemies from Obama's foreign policy team are accurate, then I imagine they have worked out the potential Biden-Clinton conflict. Also, Clinton and Biden are even closer on foreign policy than she and Obama. Accordingly, Frum's analysis probably exaggerates potential conflicts between Clinton and Biden.

But Obama has not announced a project for Biden yet. If Biden's role centers more on foreign policy, then he and Clinton could clash. I predict that Biden will play a greater role ushering Obama's legislative agenda through Congress. Domestic matters are subject to legislation far more than foreign policy initiatives. Accordingly, Biden's experience in the Senate could prove highly useful for Obama as he seeks to implement his policy vision.

Concluding Thoughts: I cannot pretend to know how this will evolve. But Frum's analysis does not sit well with me. What do you think?

Monday, November 24, 2008

Obama Names Economic TeamAlthough the rumor mill had already leaked the information, Obama named his economic policy team today. Tim Geithner will head the Department of Treasury, while his mentor Larry Summers will serve as the Director of the National Economic Council. Christina Romer will head the Council of Economic Advisors.

Rubinomics?Members of the Democratic Wing of the Democratic Party are already up in arms over some of Obama's staffing decisions. Today's New York Times adds more coals to the fire in an article that links Obama's economic team with Robert Rubin, who served as Secretary of Treasury to Bill Clinton. Liberals and progressives blame "Rubinomics" for free trade and deregulation, which they argue caused job losses and the current credit crisis. The article states that:

The president-elect’s choices for his top economic advisers — Timothy F.Geithner as Treasury secretary, Lawrence H. Summers as senior White Houseeconomics adviser and Peter R. Orszag as budget director — are past protégés ofMr. Rubin, who held two of those jobs under President Bill Clinton. Eventhe headhunters for Mr. Obama have Rubin ties: Michael Froman, Mr. Rubin’s chiefof staff in the Treasury Department who followed him to Citigroup, and JamesRubin, Mr. Rubin’s son.

All three advisers — whom Mr. Obama will officially name on Monday andTuesday — have been followers of the economic formula that came to be calledRubinomics: balanced budgets, free trade and financial deregulation, acombination that was credited with fueling the prosperity of the 1990s [Editor:And the recession of the 2000s].

Source:New York TimesSpeaking of Rubin: Citigroup Gets Largest Bailout Package to DateCitigroup, the troubled financial conglomerate where Rubin serves as a Director, will receive the largest federal bailout of any financial institution to date during the present credit crisis. Under the plan, the government will give Citigroup at $20 billion cash infusion and insure losses on the bank's $300 billion portfolio of bad debt -- largely from risky mortgage instruments. Geithner helped negotiate the bailout pursuant to his role as Chair of the Federal Reserve Bank of New York.

Obama: "No New Taxes"Taxation became a major debate issue during the general-election campaign. McCain promised to cut taxes for the "middle class," but he also said he would maintain Bush's controversial tax cuts for high-income earners. Obama, by contrast, promised to cut taxes for the middle class, but raise taxes on upper-income earners in order to fund his social programs and to prevent an explosion in the deficit. Many economic experts argued that both candidates' plans (which involved higher spending and fewer taxes) would increase the deficit. McCain's plan, however, would cause greater injury to the deficit because it would not involve any tax increases (as would Obama's).

Now, less than one month after the election, it seems that Obama's tax plan suddenly looks like McCain's. According to Reuters, Obama's team is now considering abandoning its plan to impose new tax increases due to the poor state of the economy. Wasn't the economy bad a month ago?

During the primaries, Obama's church received more passionate attention than his policy proposals. The conflict over Reverend Wright caused commentators to debate race, religion, and transparency in politics. Most of them, however, failed to ask a simple question: Why is this even relevant? Now that the media are focusing on Obama's yet unchosen church in Washington, DC, this issue will likely remain on the political radar.

From my perspective, religion has no part in governance, and an abundance of constitutional doctrine and tradition limits the interaction of religion and state action. Given this separation of church and state, the sensationalized coverage of the religious lives of political candidates strikes me as a puzzling display in distraction. Nonetheless, candidates now engage in a bizarre ritual in which they routinely profess a belief in God or Jesus. Confessing such a belief is now mandatory, just like saying that one wants to "improve schools" and "reduce crime."

During the recent political campaign, liberals spent a lot of time debunking rumors that Obama is a Muslim, rather than asking the relevance of such rumors on his suitability for public office. I am far more interested in how candidates will design policy. And religion is a pretty weak proxy for policy views. Reverend Wright and Pat Robertson are both "Christians," but they have very different opinions on public policy. Perhaps the media should end the circus by delving into policy -- rather than trying to figure out whether Sarah Palin practices witchcraft or whether Obama's minister wanted 9/11 to happen. But then again policy debates do not generate as much "traffic" as religious or sexual scandals, so I do not expect much to change in this area.

Sunday, November 23, 2008

During the Democratic primaries, whenever individuals who worked in the Clinton administration announced their support for Obama, the media and Obama supporters would gleefully report their endorsements. Now, as Obama has turned almost exclusively to Clinton-era professionals to complete his staff, the media's reaction has turned less jovial. Some progressives, in fact, feel betrayed by Obama's cabinet choices. Their reaction is justifiable in many ways, but it is also politically immature to some extent.

It is hardly novel for presidents to turn to prior administrations to pick advisers. Experience in Washington is just as valuable for politicians as experience practicing medicine is helpful for doctors. Standing alone, Obama's cabinet choices should not trigger any criticism simply because they worked for Bill Clinton.

But Obama's Campaign Demonized Career Washingtonians

During the primaries, however, many of Obama's most ardent supporters, including his own promoters, depicted him as a "Washington outsider." Furthermore, Obama gained tactical advantages when he denounced his rivals as Washington politicians. For example, when Clinton and McCain proposed a "gas tax holiday," Obama described the idea as a "gimmick" and derided his opponents as "Washington candidates." Unlike Clinton and McCain, Obama offered a better answer for voters (even though he did not outline a plan to reduce short-term fuel prices) because he was not a part of the Washington establishment. Instead, he only wanted to become its most powerful leader.

Obama's Cabinet Not Ideologically Left

Obama's picks also raise eyebrows because they do not mesh with the wildly enthusiastic praise that progressives gave his candidacy. Obama won overwhelming support from MoveOn, Daily Kos, HuffingtonPost, National Journal, and their followers. Progressives viewed Obama as being in the flock; Clinton, on the other hand, was a conservative in liberal attire (at least until Obama defeated her, and re-casting her as a liberal could help persuade/shame PUMAs to vote for him).

Obama himself often lumped Clinton-era policy with Bush's failed administration. For example, Obama said that working class people cling to guns, religion, homophobia, and xenophobia because "they fell through the Clinton Administration and the Bush Administration. . . ." Compared with Obama, Bush and both Clintons were simply more of the same. Obama, by contrast, offered a progressive voice that would create fundamental change for working-class Americans.

The leftist depiction of Obama became most pronounced in the area of foreign affairs. Obama grabbed attention during the primaries by running as an anti-war candidate. Although the economy ultimately mattered more to voters in the general election, during the primaries, Obama's opposition to the war gave him a tremendous amount of credibility among progressives. The Left contrasted Obama (a dove) from Clinton, whom they described as a dangerous hawk.

Guy Saperstein (a former president of the Sierra Club) wrote a polemical essay for AlterNet that typifies progressive disagreement with Clinton in the context of foreign policy. Saperstein characterizes Clinton as "one of the most hawkish of Democrats" in the Senate. He also accuses her foreign policy advisors of being equally enthusiastic about militarism. By contrast, Saperstein argues that Obama's speech opposing the war (prior to his run for the Senate) makes him a "case study of good judgment trumping a resume." Based on his comparison of the candidates, Saperstein concludes that: "For those voters who want American foreign policy to continue to trend in the direction of muscularity and intervention, they have their candidate -- Hillary Clinton. For those who want change in American foreign policy, who think American militarism and interventionism need to be scaled back, Obama, and his foreign policy advisors, appear ready to begin those changes."Well, now it appears that a hawk will promulgate foreign policy for the next four years.

Obama also assailed Clinton on foreign policy, making arguments that resemble those that Saperstein advances. Obama argued, for example, that even if Clinton has experience, her vote authorizing the use of force in Iraq shows that she lacks judgment. Today, Clinton's suddenly-good judgment makes her the leading candidate to serve as the nation's highest diplomat. Now that's change! I wonder if this is what Saperstein had in mind with his endorsement.

Experience Actually Matters

A final area in which Obama's personnel choices deviate from his campaign message surrounds the issue of "experience." Obama's remarkable ability to rebut Clinton's experience narrative impressed me during the primaries. Obama blunted the experience argument by turning the issue into one of judgment. Even if Clinton has more "experience" (which she might not actually have), it does not mean much if she also lacks judgment (demonstrated, for example, by her vote in favor of the Iraq War).

Many progressives and liberals embraced the judgment-over-experience argument (see Saperstein's essay). Others, however, discounted experience altogether. Washington Post columnist E.J. Dionne used his weekly column to espouse liberal and progressive perspectives on Obama. In one column, Dionne rejects Clinton's arguments that experience and knowledge concerning policy matter more than messages of "hope" and "change." Dionne concedes that"[i]f we chose a president by examination rather than election, [Clinton] would win . . . .But voters right now are not thinking about intricate puzzles." Dionne asserts that "[t]ransformation is not about policy details but about altering the political and social calculus."

Well, apparently, Obama does not see things this way. In picking members of his cabinet and high-level staff, Obama has selected candidates with long and deep resumes in Washington and who have a high degree of knowledge concerning public policy. Experience and knowledge now drive his message more than "change" and "hope." Even writers for the Obama-endorsing San Francisco Chronicle have reported on the contradictions between Obama's staff and his campaign rhetoric. A recent article in the paper observes that: "[T]he Obama administration is shaping up as a collection of experienced and powerful Washington hands.It is a far cry from the change mantra of Obama's campaign, during which he routinely attacked Washington as a captive of old politics and special interests."

Concluding Thoughts

Although I have chosen to highlight the differences between Obama's campaign rhetoric and his personnel choices, I do not disagree with his decision to hire experienced, Clinton-era politicos or even ideological moderates. In fact, I always suspected Obama would do this, and all of the individuals he has selected have already demonstrated that they are talented and capable. Moreover, experience has always been relevant in picking a president, and, contrary to anti-Clinton campaign rhetoric, there are stark differences between the Clinton and Bush administrations. Obama's decision to hire many Clinton-era politicians, especially Hillary Clinton, vindicates the idea that experience matters, and it also helps legitimize the Clinton administration for younger Democrats who often fell for the assertion that Bush and the Clintons are indistinguishable.

Even though I do not have a problem with Obama's cabinet picks or his policies, I continue to focus on the issues discussed on this blog because, as an educator, I feel compelled to use the election as a "teaching moment" for demonstrating the problems that can occur when seasoned political commentators, voters, and analysts uncritically accept campaign rhetoric. I also want younger voters, who may have participated in politics for the first time, to realize that even candidates they passionately support can and will behave like politicians. They need to do this in order to win and get re-elected. In other words, I write to teach. That's my mission. And my teaching is nonpartisan. I hope you enjoy it!

Saturday, November 22, 2008

After Florida romped South Carolina last week, former Gator coach (and current SC coach) Steve Spurrier showed a lot of class when he encouraged Urban Meyer to win "four in a row." If the Gators follow Spurrier's advice, they would probably win the national championship.

Today, they inched closer to that goal by blasting the Citadel in yet another lopsided outing. Since the Gators lost a home game to Mississippi by a mere one point, the team has won seven consecutive games. And the victories have been decisive. The Gators have outscored opponents 369-82 during this surge . Overall, the Gators have demolished their opponents 512-131.

UF closes its season with an annual clash against in-state rival FSU, followed by the SEC Championship Game against Alabama, which currently holds the top spot in the rankings. If the Gators win those two games, they will likely earn a spot in the BCS Championship Game. If they win the championship, the Gators would attain their second football title in three years, and considered together with basketball, the Gators would have won 4 national championships in four years. Good stuff!

Disclaimer: This blog normally focuses on law and politics, but as a Gainesville native, Saturday means football.

Progressives are experiencing a collective meltdown as Hillary Clinton prepares to become Secretary of State in the Obama administration. During the primaries, the Left contended that Clinton was hawkish and that she would only offer more of the same militaristic and dangerous practices of the Bush administration. Obama, by contrast, was portrayed almost exclusively as a dove -- even when he equivocated on Iraq, Iran and other sensitive areas of national security.

Progressives are also ablaze over the rumored selection of Timothy Geithner as Secretary of Treasury. Geithner has worked with Paulson to bail-out AIG and Bear Stearns. Initially, the leftwing of the party feared that Obama would choose Larry Summers for the post. Progressives criticize Summers because he supported deregulation of financial markets, which many liberals believe caused the current economic crisis. Summers also sparked controversy during his tenure as president of Harvard University when he said that women are not genetically wired to excel in the hard sciences.

Instead of selecting Summers, Obama's transition team seems to have settled upon his protoge. Most political analysis to date characterizes Geithner as being moderate or center-right. Accordingly, his selection gives progressives another reason to complain.

Today's New York Times explains that Obama's cabinet decisions suggest that he will govern from the center-right, despite the enthusiasm he has generated among leftists. Here's a snippet:

[Obama's] reported selections for two of the major positions in his cabinet — Senator Hillary Rodham Clinton as secretary of state and Timothy F. Geithner as Secretary of the Treasury — suggest that Mr. Obama is planning to govern from the center-right of his party, surrounding himself with pragmatists rather than ideologues.

The choices are as revealing of the new president as they are of his appointees — and suggest that, from its first days, an Obama White House will brim with big personalities and far more spirited debate than occurred among the largely like-minded advisers who populated President Bush’s first term.

My take: Bill Clinton's "pragmatism" made him the enemy of the left, and Hillary Clinton suffered from this too. But liberals can only survive in a national office if they are pragmatic (particularly because the country remains center-right, despite the exuberance of the left). Pragmatism, however, is not a theme in the narrative the left uses to describe Obama. By contrast, they have argued that Obama will restore the country's image domestically and internationally, bring about peace, provide jobs for the middle-class, end discrimination, bigotry and social divisions, banish partisanship, slay the GOP, and usher in a new New Deal. I imagine some of them will begin altering that narrative in the near future.

PS: I like the argument that the author provides for the Obama team. Although Obama's cabinet choices might upset people on the Left, their anger is misplaced. Having conservatives and moderates serve in Obama's cabinet allows for "spirited debate," which did not occur during the nasty, evil Bush administration. So liberals -- be quiet!

Also the author suggests a false dichotomy between pragmatism and leftist ideology; Obama is going for the center-right by picking pragmatists (not leftists). As a pragmatic leftist, I take offense at the dichotomy, but I'm just a mere blogger, not a learned New York Times journalist. Smell the fresh scent of sarcasm. Ain't it great?

Friday, November 21, 2008

Clinton will become the third woman to serve as Secretary of State. Earlier, I said that if she became SOS in the Obama administration that my level of cynicism would max out. I guess I will need to raise the limit because all media outlets now report that Obama and Clinton have basically reached a deal.

Yesterday, I wrote a blog entry which argued that if Obama picked Robert Gates as Secretary of Defense this would not inspire confidence that the he would move forward on his promise to lift the ban on gays and lesbians in the military. Remarkably, Gates, who currently heads the Department of Defense under Bush, has argued that he is too busy fighting terrorism and wars to deal with the issue of anti-gay discrimination. He also contends that the military does not even ban gay and lesbian people, but any person who wants to engage in gay sex, have a gay wedding, or who says he or she is gay, lesbian or bisexual (yes -- he said that!).

Today's Washington Times cites "insiders" who say that Obama will probably not attempt to repeal the ban until at least 2010. The source says that Obama wants to establish a consensus among military leaders before acting. Certainly, he should act smartly and in a strategic fashion. But military leaders do not want to end the ban. Retired military leaders have argued against it, but current leaders have not. Gates has made horrible statements about gays and lesbians, and Obama proudly accepted the endorsement of Colin Powell who orchestrated the military's vocal and swift rejection of Clinton's effort to repeal the ban. A compromise forced by Powell gave us the wretched "Don't Ask, Don't Tell." Accordingly, I am not holding my breath on this one.

Every day, reality rears its ugly head for progressives. During the Democratic primaries and in the general election campaign, I often thought that the left was collectively in an Obama-Vegetative State. Like zombies, they moved along, unable to muster up the slightest analysis of Obama that did not sound like messianic blather. I do not blame Obama for this. On the contrary, I have come to view him as one of the most skillful politicians in U.S. history. Progressives, however, frightened me because most of them abdicated dissent.

Recently, however, the EEG has detected signs of brain activity among the left. Now progressives seem to realize that an "election is not a social movement" (something I argued weeks ago). Gradually, more of them now argue that in order for Obama's presidency to generate meaningful reform, grassroots political activism around specific issues (rather than ambiguous appeals to change and hope) must take place. This will not occur if leftists and liberals remain lulled into an hypnotic state by their excitement of having a Democratic president and their utter shock and amazement that this Democrat is also black. Here are some examples of renewed signs of life among progressives.

The NationFor the last year, The Nation (a liberal magazine) was passionately uncritical. Anything Obama did generated chills, tears, smiles, and warmth. Euphoria comes to mind as an umbrella term to describe the mental state of writers for the Nation. Now that the election is over, kinks have emerged in the liberal Utopia. For example, Francis Fox Piven has published an essay arguing that liberals and progressives need to generate activism to push Obama to implement progressive policies. No, Virginia, he will not do it on his own! Piven accurately argues that FDR -- the storied leader of progressive change in the U.S. -- did not come to power with a radical agenda. Instead, labor movements, consumer activism, and political protests helped push through meaningful reform. A coalition of progressive causes also supported the progressive changes that took place during the Johnson Administration.

The Executive Director of the NAACP has also joined the conversation at The Nation. Benjamin Todd Jealous acknowledges the historic nature of Obama's presidency, but he argues that: "[W]e cannot stop here. This victory is momentous but ethereal. Progress is eroded when not pushed forward, taken to the next level."

Reactions to Cabinet SelectionsObama's cabinet choices so far have probably done the most to jolt progressives out of their slumber. Many people on the left feel "betrayed," if not horrified, by Obama's personnel decisions. They are particularly upset by his choice of Rahm Emanuel as Chief of Staff and are sweating bullets over the prospect of Hillary Clinton heading the State Department and Larry Summers getting the nod at Treasury. But perhaps they got some relief when Penny Pritzker, the 135th wealthiest American according to Forbes Magazine, declined to accept an offer from our beloved community organizer to become Secretary of Commerce.

Matthew Rothschild at The Progressive criticizes Obama for not appointing persons with progressive credentials to serve in his cabinet. He argues that "there are a lot of talented progressives who could be in an Obama cabinet." Rothschild's list of potential nominees includes Dennis Kucinich as Secretary of State. Back at The Nation, Tom Englehardt argues that it almost seems as if Clinton won the election and that "Clintonistas are just piling up in the prospective corridors of power" (I have made similar arguments).

And over at the liberal blog Open Left, David Sirota has blown a gasket reacting to the current line-up of Obama appointees, calling the situation "creepy." Sirota argues that:

For all the talk of "change," I'm really curious whether Barack Obama thinksthere are any worthy, smart, well-qualified people who aren't part of permanentWashington and who didn't serve in the Clinton administration? Certainly, hiscampaign apparatus appreciated that. But it doesn't seem like his transitionteam does (a transition team, of course, dominated by former Clinton officials).

My take: This is great stuff. If you read my background area, you will notice that I started this blog because I believed that during the campaigning progressives completely abdicated engaging in dissent and that liberal academics were doubly wrongheaded because as liberals and (especially) as academics they have a greater duty to examine society with a critical lens. Many progressives now realize that broad social change does not magically occur, while some of them simply thrive on criticism (like I?). None of this detracts from Obama or his victory. Instead, it just treats him like any other president or presidential candidate. Obama is positive, but imperfect, and he will do whatever it takes to get elected and re-elected. Consequently, social movements must apply pressure on him in order to ensure that he will press for progressive social change. Otherwise, he has no incentive to do so.

Thursday, November 20, 2008

The Democrats ran a very conflicted campaign with respect to GLBT issues. Many political commentators believe that in 2004, opposition to same-sex marriage inspired rightwing evangelicals to vote, which helped Bush defeat Kerry. Although both Kerry and Bush stated that they did not "believe in" same-sex marriage, Kerry did not support Bush's proposed marriage amendment (which would have amended the Constitution to define marriage in heterosexual terms).

In 2008 Democrats Ran as Conservatives on Gay Rights

Against the 2004 political backdrop, the Democrats chose strategically to avoid looking progressive on glbt issues. They combined a lack of support for some glbt issues like marriage with generic statements supporting glbt rights in order to satisfy progressive voters and organizations within the party. At times, this song and dance produced very bizarre results. Obama, for example, opposes same-sex marriage for "religious" reasons -- which basically makes his position indistinct from that of the Christian Right. Yet, Obama also opposes efforts to amend state law to define marriage in heterosexual terms. So he is against same-sex marriage, unless people are voting to oppose it. Clinton basically said the same thing.

Political Compromises Can Preclude Meaningful "Change"

This week, the DC buzz, which has been remarkably accurate on cabinet issues, has concluded that Robert Gates will serve as Secretary of Defense under Obama. Gates already holds that position in the Bush administration. Accordingly, picking Gates would provide Obama with yet another opportunity to demonstrate how nonpartisan he is. It would also allow him to market himself as occupying the center-to-right of the political spectrum, contrary to much of the discourse surrounding his campaign during the Democratic primaries.

I can hear the liberal elite crying now. Literally, I can, because I am in my law school office typing this blog entry. Obama has already quashed efforts to oust Joe "Judas" Lieberman from the Democratic caucus, although he delivered a speech at the Republican National Convention during which he assailed Obama as being unprepared for the presidency. He has also met with McCain, whom he criticized as "erratic" and "out of touch." Thanks to a media presence at the meeting the public has loads of toothy photographs documenting the detente between the former political rivals. Finally, Obama is very close to naming Hillary Clinton as Secretary of State -- despite having criticized her vote to authorize force in Iraq as showing a lack of judgment (and this was probably his lightest critique of her). For the record, Biden also voted for the war.

Although collaborative governance sounds noble, compromising and being nonpartisan above all else can cause a leader to lose focus on achieving important goals. At some point, having moderates and conservatives executing and developing policy will limit the potential for actually bringing about meaningful progressive change (please note that for the sake of argument I am assuming the validity of liberal rhetoric which sees Obama's victory as necessarily ushering in liberal change).

Gates Says That Merely Debating the Military's Anti-Gay Policy Would Impede War Against Terrorism

Gates' selection could mean that glbt rights will remain on the back seat in the new administration. Gates has already dismissed concerns over the military's policy banning participation by glbt people. In January 2007, Senator Ron Wyden of Oregon, who is very supportive of gay rights, wrote Gates a letter soliciting his views on the military's anti-gay policy. Responding through Under Secretary Donald Chu (it is safe to assume that the letter reflects the official position of the Department of Defense), Gates first denied that the military even bans gays and lesbians! Gates explained that military policy only mandates the discharge of individuals who "engage in or attempt to engage in homosexual acts," self-identify as "homosexual or bisexual," or marry or attempt to marry someone of the same "biological sex."

Thanks for the clarification. The military does not ban gay and lesbian people as such. Instead, it only excludes, for instance, men who have sex with men, who want to marry men, or who, for some strange reason, like to tell others they are gay or bi. Apparently, this is nondiscriminatory because it applies evenly to heterosexuals. Gates' "logic" fails to pass the proverbial laugh test.

But his response gets even worse. After denying that the military even bans gays and lesbians, he argues that as long as the country remains at war and is vulnerable to acts of terrorism, then merely discussing the anti-gay policy would threaten national security:

The Global War on Terrorism is far-reaching and unrelenting. The threat to our country is here for the long term. As a result, every day, around the world, our forces engage with our allies in dangerous, life-threatening events, and this will continue into the foreseeable future. A national debate on changing [the military's policy] with the accompanying divisiveness and turbulence across our country, will compound the burden of the war.

Gates expressed similar views during an interview on CBS's Face the Nation with Bob Schieffer. Schieffer asked Gates whether he is "satisfied" with Don't Ask, Don't Tell or whether he thought the policy "should be reviewed." Gates used the ongoing wars to excuse inaction on the policy: "I’ve got a war in Iraq, a war in Afghanistan, challenges in Iran and North Korea and elsewhere, global war on terror, three budget bills totaling $715 billion. I think I’ve got quite a lot on my plate."

Because Obama has promised to increase the size of the military and the escalate the war in Afghanistan, the "Global War on Terrorism" (curiously elevated to a proper noun by Gates) is indeed here to stay. Besides, I cannot recall a four-year stretch when the United States was not involved in some type of military action. But this fact cannot give the military a free pass to discriminate on the basis of sexual identity and to evade public discourse over the legitimacy of its policies. These types of scare tactics helped elect Bush twice. But now, voters have selected a self-proclaimed agent of "change." I hope that Gates has to explain his controversial and distorted views on "Don't Ask, Don't Tell" during the vetting process. Otherwise, blatant discrimination might remain unscathed in a "changed" political landscape.

GLBT Movement Actors Must Hold Democrats Accountable

To his credit, Obama has said he opposes Don't Ask, Don't Tell and has promised to seek its repeal. And Gates would answer to Obama instead of Bush. But Obama has also said that he would take a safe route and meet with military leaders to learn the best way to accomplish the repeal (as if it is really difficult to ban discrimination). Military leaders, however, do not want to repeal the anti-gay policy, and they were instrumental in blocking Bill Clinton's reform effort. Although Democrats salivated after Colin Powell endorsed Obama, only a few people (myself included) recalled that Powell orchestrated the defeat of Clinton's attempt to repeal the anti-gay policy. Powell's opposition led to the hideous Don't Ask, Don't Tell compromise. Having folks like Gates, Powell and Sam Nunn close to the Obama administration does not inspire confidence that the new president will extend strong or visible support to pro-gay causes unless Congress or activists push him to do so.

Accordingly, gay rights advocates must make sure that the change movement does not ignore glbt people. This will require gay equality advocates to wake up (like they are finally doing in California) and force Democrats to live up to their silky words regarding justice and progress. Otherwise, all of the lofty talk about the "diversity" of the Democrats versus the homogeneity of the GOP means absolutely nothing -- except that the Democrats tolerate hypocrisy, while the Republicans do not believe in equality through window-dressing.

Wednesday, November 19, 2008

The rumor mill continues to grind.CNN reports that Tom Daschle, a former Senator and Obama endorser, will head the Department of Health and Human Services in the new administration. Reportedly, Daschle will have the important task of pushing through Obama's health care reform agenda.

My take: I am waiting for a cabinet appointment who is not a "Washington insider" or who has not served in the Clinton administration. Actually, I am not. I just felt the need to say that, since the media will not. Honestly, I think Obama has made very wise selections. Clinton, Holder, Daschle, and the others are very capable individuals. Their selection (especially Clinton's), however, contradicts many elements of Obama's campaign message -- elements that I have always viewed with skepticism (see this article and others linked below). For the record, I typically view campaign messages with skepticism -- even when they come from candidates I support (including Obama).

My primary "beef" lies with liberals who have chosen to live in denial by refusing to acknowledge the contradictions between Obama's campaign and his early personnel decisions. So, in order to create a nuanced and more accurate historical record, I respectfully dissent from uncritical acceptance of reality.Related readings on Dissenting Justice:

About Me and the Blog

Professor Darren Hutchinson teaches Constitutional Law, Remedies, Race and the Law, and a Civil Rights Seminar at the University of Florida Levin College of Law. Professor Hutchinson also holds the prestigious Stephen C. O’Connell Chair.
Professor Hutchinson received a B.A. from the University of Pennsylvania and a J.D. from Yale Law School. Before teaching law, Professor Hutchinson practiced commercial litigation at Cleary, Gottlieb, Steen and Hamilton in New York City. He also clerked for the late Honorable Mary Johnson Lowe, a former United States District Judge in the Southern District of New York.
Professor Hutchinson's research has appeared in many prestigious journals including the Cornell Law Review, Washington University Law Review, UCLA Law Review, University of Michigan Journal of Race and Law, and University of Pennsylvania Journal of Constitutional Law.
He has also presented his research at numerous universities, including Yale, Stanford, Columbia, University of Pennsylvania, University of Michigan, University of California at Berkeley, University of Virginia, Cornell, Georgetown, and Boston University.

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